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Surrogacy lawyers help couples deliver the family of their dreams

Associate Editor Regular News

The Neufelds/Orit Ben-Ezzer
FT. LAUDERDALE LAWYERS Marla and Jason Neufeld had twin boys, Ethan and Asher, through a surrogate after struggling for five years with infertility. According to Marla, the cost of fertility procedures has marginally gone down over the years because of improvements in technology and the option isn’t just for the rich and famous anymore. “Throughout this journey, my husband and I, and our supportive family and friends, have grown closer,” said Marla, who now practices surrogacy law.

Surrogacy lawyers help couples deliver the family of their dreams

Associate Editor

Japan. Italy. Portugal. France. Germany. These are just a few countries that prohibit surrogacy and many states frown upon it, too: namely, New York and Michigan, where severe penalties apply to offenders who contract with and compensate a surrogate.

That is why surrogacy-friendly Florida attracts countless people from all over the world who wish to create the family of their dreams — a picture of healthy, bouncy, playful babies that wouldn’t otherwise exist — because of infertility.

For Florida attorneys, it can be a major undertaking to draft the detailed contracts involved in this complex area of family law.

“This isn’t like drafting a lease,” said Karen Persis, a surrogacy lawyer and Young Lawyers Division board member from Orlando. “There’s a lot that goes into it. This is modern family formation.”

Karen Persis With a passion for helping people establish the family of their dreams, Persis took a giant financial risk by venturing to form her own practice, and went on to represent intended parents from as far as Australia — where contract surrogacy is also illegal.

“We have some of the best laws in the country,” she said. “So, a lot of people come to Florida to do their surrogacies and egg donations. We have a lot of international people that come to Florida to complete their surrogacy journey. It’s illegal in a lot of other countries.”

In the Sunshine State, a binding contract can be entered into for a gestational surrogacy, in which the carrier has no genetic link to the embryo, under F.S. §742.15.

However, if the surrogate’s own egg is part of the equation, then she has 48 hours under Florida’s preplanned adoption agreement to change her mind about releasing the child and rescind her consent.

This type of traditional surrogacy — when the carrier offers her own egg — is generally more affordable, but it is rarely done, according to Persis.

“Obviously, there’s a big risk on the part of the intended-parents to take that on,” she explained. “The issue there is that it’s her egg, so she’s genetically connected to the child. You just have to make sure that everyone really understands what’s happening here.

“Generally speaking, most people do gestational surrogacy where the surrogate has no biological connection,” said Persis. “It is not the standard that people are doing traditional surrogacy. It is very rare.”

Throughout the world, the controversial topic of assisted human reproduction is debated: Is surrogacy a financial exploitation of women’s bodies? Is it fair for a child to grow up knowing they have, in some cases, three different mothers (the birth mother, the egg donor, and the intended-parent)?

Despite ethical questions surrounding the issue, when it comes to having a baby biologically tied to the parents, Florida makes the alternative choice accessible to infertile couples.

New to the practice of surrogacy law, Marla Neufeld of Ft. Lauderdale had twin boys, Ethan and Asher, through a surrogate. She and her husband struggled for five years with infertility. Before changing course in her legal career, she was a transactional attorney for seven years.

“I’ve been in this world of fertility doctors, and so many appointments, and just juggling everything. And then we ultimately used a surrogate,” Neufeld said. “It’s an amazing option for people as a last resort, when they think there’s no hope, or think that there are no other options available. This has opened up the possibility of having a genetic link to your child.”

Neufeld was impressed by her surrogate’s commitment to ship them breast milk by FedEx overnight delivery for the first three months of the babies’ lives until she ran out.

According to Neufeld, the cost of fertility procedures has marginally gone down over the years because of improvements in technology and the option isn’t just for the rich and famous anymore. A few affluent celebrities who took the surrogacy route include Nicole Kidman, Sarah Jessica Parker, and Jimmy Fallon.

Although legally binding agreements are permissible in the state, the task isn’t simple. Eileen Coe of Winter Park, who has practiced in this area of law for six years, is among 15 to 20 attorneys in the field in Florida. She said that surrogacy goes much deeper than a written contract.

“The issue with surrogacy is that, yes, there is a genetic relationship, but you have to have usually a perfect stranger, or it may not be a perfect stranger, carrying your child, and that is difficult psychologically. It’s a huge gift what that person’s doing, but you sure wish you’d be able to do it yourself, and that’s bittersweet,” Coe said.

“And surrogacy does not always work,” she explained. “You can spend $50,000 — and that’s a broad figure, not a set figure — you can spend that much money — and not conceive and that’s it. That’s the end of it. She may miscarry; there may be issues with her; there may be issues with the embryos; there may be something that happened at the lab — you just don’t know,” she said.

Persis explained that, to be able to resolve any unexpected problems during the process, attorneys need to plan for every possibility: How many embryos will be implanted? Suppose a fetus has an abnormality, would the surrogate comply with terminating the pregnancy? What happens if the intended parents die or divorce before the birth? What if two emplanted embryos split and suddenly she’s carrying four?

“And if she’s carrying four,” Persis said. “What are we talking about here? Most doctors would say the odds of four being healthy are so rare. Say, the doctor says we need to reduce this because it’s detrimental to the other two. You need to make sure you’re on the same page with the surrogate.

“There are a lot of issues here that have nothing to do with money when you’re negotiating these agreements,” Persis continued. “That’s why these contracts are very long, but they need to be. This is critical. We are talking about a human being.”

Coe said she hopes Florida laws remain surrogacy-friendly well into the future, despite ethical or political debate that may arise from time to time on the issue.

“Give the doctors credit and the lawyers credit for trying to be as circumspect and careful as possible, because all kinds of issues are produced through this,” Coe said.

“And hopefully everybody wants to do the right thing. But keep in mind, you’ve got a little one. In the end, you’ve got a baby that you have to have done the right thing by.

“For most of the people that do this, it’s not just a business,” she explained. “I truly feel grateful and connected to it. It’s a true gift for parents that can’t conceive.”

With regard to the women — who must be at least 18 years old, under Florida law — who have willfully carried another couple’s child, Persis was forthright in letting her admiration be known.

“I’ve represented a lot of surrogates,” she said. “They are very strong women. Some of these surrogates are just absolutely amazing people. They really are. They’re strong.

“You never have somebody that hasn’t given birth before. They’re all mothers. They are very compassionate, when it comes to these things. They are caring for this child, and then giving it over. They are just really strong women.”

Occasionally, the media gets ahold of a rare surrogacy horror story that catches public attention, but Persis insisted that the majority of parents have good experiences that never make the news.

“You only hear all these crazy scenarios, but the reality is that’s not what happens,” Persis explained.

“Just, generally speaking, they are positive experiences. Surrogacy is happening a lot, but they are just normal surrogate/intended-parent relationships that work out with people being able to achieve families that they, under normal circumstances, would not have been able to achieve. It’s a great thing.”

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